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Employee who fell asleep at work was unfairly dismissed
Staying awake at work is one of the most fundamental requirements of almost every job. However, the recent case of Okoro v Bidvest Noonan (UK) Ltd serves as a reminder to employers that they should not jump to a conclusion that being asleep at work always warrants dismissal. Context must always be taken into account. In this case, Mr Okoro was a CCTV controller.
He fell asleep while on duty for around 15 minutes. His employer, following an investigation, dismissed him for gross misconduct. Mr Okoro claimed unfair dismissal. His employer was required to satisfy the test from Bhs v Burchell: that it held a reasonable belief, following a reasonable investigation, that the employee was guilty of misconduct.
The Employment tribunal was satisfied that this test was satisfied in this case. However, it still found Mr Okoro’s dismissal to be unfair, as it concluded that, bearing in mind the wider circumstances, dismissal was not within the band of reasonable responses that a reasonable employer might reach (Sainsbury’s v Hitt). In particular:
- Mr Okoro had 16 years’ service.
- He had a clean disciplinary record.
- He had only been asleep for a very short period of time.
- Falling asleep at work was not included in the business’s policy as an example of gross misconduct
- There were no adverse consequences to the employer as a result of the incident.
Mr Okoro was awarded over £20,000 in compensation. Employers faced with potentially serious disciplinary allegations should always bear in mind:
- Context: Allegations should be viewed in light of the wider circumstances, including whether the conduct was wilful.
- Policy: It is always going to be easier to justify dismissal where the conduct is listed as an example of gross misconduct in the employer’s disciplinary policy.
- Long service: An incident of misconduct from an otherwise exemplary long-serving employee should always be analysed more critically before a decision to dismiss is reached.